Treaty of Mahakali
REATY--
HIS MAJESTY'S GOVERNMENT OF NEPAL AND THE GOVERNMENT OF
INDIA CONCERNING THE INTEGRATED DEVELOPMENT OF THE MAHAKALI
RIVER INCLUDING SARADA BARRAGE, TANAKPUR BARRAGE AND PANCHESHWAR
PROJECT (1996)
His
Majesty's Government of NEPAL and the Government of INDIA
(hereinafter referred to as the "parties")
Reaffirming
the determination to promote and strengthen their relations
of friendship and close neighborliness for the co-operation
in the development of water resources;
Recognizing
that the Mahakali River is a boundary river on major stretches
between the two countries;
Realizing
the desirability to a treaty on the basis of equal partnership
to define their obligations and corresponding rights and
duties thereto in regard to the waters of the Mahakali
River and its utilization;
Noting
the Exchange of Letters of 1920 through which both the
Parties had entered into an arrangement for the construction
of the Sarada Barrage in the Mahakali river, whereby Nepal
is to receive some waters from the said Barrage;
Recalling
the decision taken in the Joint Commission dated 4-5 December,
1991 and the Joint CommuniquÈ issued during the
visit of the Prime Minister of India to Nepal on 21st
October, 1992 regarding the Tanakpur Barrage which India
has constructed in a course of the Mahakali River with
a part of the eastern afflux bund at Jimuwa and the adjoining
poundage area of the said Barrage lying in the Nepalese
territory;
Noting
that both the Parties are jointly preparing a Detailed
Project Report of the Pancheshwar Multipurpose project
to be implement in the Mahakali River;
Now,
therefore, the Parties hereto hereby have agreed as follows:
Article-1
1.
Nepal shall have right to a supply of 28.35m3/s (1000
cusecs) of water from the Sarada Barrage in the wet season
(i.e. from 15th May to 15th October) and 4.25m3/s
(150 cusecs) in the dry season (i.e. from 16th October
to 14th May).
2.
India shall maintain a flow of not less than 10m3/s(350cusecs)
downstream of the Sarada Barrage in the Mahakali River
to maintain and preserve the river eco-system.
3.
In case the Sarada Barrage becomes non-functional due
to any cause:
(a)
Nepal shall have the right to a supply of water as mentioned
in paragraph 1 of this Article, by using the head regulator(s)
mentioned in paragraph 2 of Article 2 herein. Such a supply
of water shall be in addition to the water to be supplied
to Nepal pursuant to paragraph 2 of Article 2.
(b)
India shall maintain the river flow pursuant to paragraph
2 of this article from the tailrace of the Tanakpur Power
Station downstream of the Sarada Barrage.
Article-2
In
continuation of the decisions taken in the Joint Commission
dated 4-5 December 1991 and the Joint CommuniquÈ
issued during the visit of the Prime Minister of India
to Nepal on 21st October, 1992, both the Parties agree
as follows:
1.
For the construction of the eastern afflux bund of the
Tanakpur Barrage at Jimuwa and tying it up to the high
ground in the Nepalese territory at EL 250 M, Nepal gives
its consent to use a piece of land of about 577 meters
in length (an area of about 2.9 hectares) of the Nepalese
territory at the Jimuwa village in Mahendranagar Municipal
area and a certain portion of the No-Man's Land on either
side of the border. The Nepalese land consented to be
so used and the land lying on the west of the said land
( about 9 hectares) upto the Nepal-India border which
forms a part of the poundage area, including the natural
resources endowment lying within that area, remains under
the continued sovereignty and control of Nepal and Nepal
is free to exercise all attendant rights thereto .
2.
In lieu of the eastern afflux bund of the Tanakpur Barrage,
at Jimuwa thus constructed, Nepal shall have the right
to:
(a)
A supply of 28.35m3/s (1000cusecs) of water
in the wet season (i.e. from 15th May to 15th October)
and 8.50m3/s (300 cusecs) in the dry season
(i.e. from 16th October to 14th May ) from the date of
the entry into force of this treaty. For this purpose
and for the purpose of Article I herein India shall construct
the head regulators near the left under sluice of the
Tanakpur Barrage and also the waterways of the repaired
capacity upto the Nepal-India border. Such head regulators
and waterways shall be operated jointly.
(b)
A supply of 70 millions Kilowatt-hour (unit) of
energy on a continuous basis annually, free of cost, from
the date of the entry into force of this Treaty. For this
purpose, India shall construct a 132 kv transmission line
upto the Nepal-India border from the Tanakpur power station
(which has at present, an installed capacity of 120,000
kilowatt generating 448.4 millions kilowatt-hour of energy
annually on 90 percent dependable year flow).
3.
Following arrangements shall be made at the Tanakpur Barrage
at time of development of any storage projects including
Pancheshwar Multipurpose project upstream of the Tanakpur
Barrage:
(a)
Additional head regulator and the necessary waterways,
as required, up to the Nepal-India border shall be constructed
to supply additional water to Nepal. Such head regulator
and waterways shall be operated jointly.
(b)
Nepal shall have additional energy equal to half of the
incremental energy generated from the Tanakpur power Station,
on a continuous basis from the date of augmentation of
the flow of the Mahakali River and shall bear half of
the additional operation cost and, if required, half of
the additional capital cost at the Tanakpur Power Station
for the generation of such incremental energy.
Article-3
Pancheshwar
Multipurpose Project (hereinafter referred to as the "Project")
is to be constructed on a stretch of the Mahakali River
where it forms the boundary between the two countries
and hence both the parties agree that they have equal
entitlement in the utilization of the waters of the Mahakali
River without prejudice to their respective existing consumptive
uses of the waters of the Mahakali River. Therefore, both
the parties agree to implement the project in the Mahakali
River in accordance with the Detailed Project Report(DPR)
being jointly prepared by them. The project shall be designed
and implemented on the basis of the following principles;
1.
The Project shall, as would be agreed between the parties,
be designed to produce the maximum total net benefits.
All benefits accruing to both the parties with the development
of the project in the forms of power, irrigation, flood
control etc., shall be assessed.
2.
The Project shall be implemented or caused to be implemented
as an integrated project including power stations of equal
capacity on each side of the Mahakali River. The two power
stations shall be operated in an integrated manner and
the total energy generated shall be shared equally between
the parities.
3.
The cost of the project shall be borne by the parties
in proportion to the benefits accruing to them. Both the
parties shall jointly endeavor to mobilize the finance
required for the implementation of the project.
4.
A portion of Nepal's Share of energy shall be sold to
India. The quantum of such energy and its price shall
be mutually agreed upon between the parties.
Article-4
India
shall supply 10 m3/s (350 cusecs) of water
for the irrigation of Dodhara Chandani area of Nepalese
Territory. The technical and other details will be mutually
worked out.
Article-5
1.
Water requirements of Nepal shall be given prime consideration
in the utilization of the waters of the Mahakali River.
2.
Both the parties shall be entitled to draw their share
of waters of the Mahakali River from the Tanakpur Barrage
and/or other mutually agreed points as provided for in
this treaty and any subsequent agreement between the parties.
Article-6
Any
project, other than those mentioned herein, to be developed
in the Mahakali River, where it is a boundary river, shall
be designed and implemented by an agreement between the
parties on the principles established by this Treaty.
Article-7
In
order to maintain the flow and level of the waters of
the Mahakali River, each party undertakes not to use or
obstruct or divert the waters of the Mahakali River adversely
affecting its natural flow and level except by an agreement
between the parties provided, however, this shall not
preclude the use of the waters of the Mahakali river by
the local communities living along both sides of the Mahakali
River, not exceeding five(5) percent of the average annual
flow at Pancheshwar.
Article-8
This
Treaty shall not preclude planning, survey, development
and operation of any work on the tributaries of the Mahakali
River, to be carried out independently by each party in
its own territory without adversely affecting the provision
of Article 7 of this Treaty.
Article-9
1.
There shall be a Mahakali River Commission (hereinafter
referred to as the "commission"). The Commission
shall be guided by the principles of equality, mutual
benefit and no harm to either party.
2.
The commission shall be composed of equal number of representatives
from both the parties.
3.
The functions of the Commission shall, inter alia, include
the following:
(a)
To seek information on and if necessary, inspect all structures
included in the Treaty and make recommendations to both
the parties to take steps which shall be necessary to
implement the provisions of this Treaty.
(b)
To make recommendations to both the parties for the conservation
and utilization of the Mahakali River as envisaged and
provided for in this Treaty.
(c)
To provide expert evaluation of projects and recommendations
thereto.
(d)
To co-ordinate and monitor plans of actions arising out
of the implementation of this Treaty, and
(e)
To examine any differences arising between the parties
concerning the interpretation and application of this
Treaty.
4.
The expenses of the commission shall be borne equally
by both the parties.
5.
As soon as the Commission has been constituted pursuant
to paragraph 1 and 2 of this Article, it shall draft its
rules of procedure which shall be submitted to both the
parties for their concurrence.
6.
Both the parties shall reserve their rights to deal directly
with each other on matters which may be in the competence
of the commission.
Article-10
Both
the parties may form project specific joint entity/ies
for the development, execution and operation of new projects
including Pancheshwar Multipurpose Project in the Mahakali
River for their mutual benefit.
Article-11
1.
If the commission fails under Article 9 of this Treaty
to recommend its opinion after examining the differences
of the parties within three (3) months of such reference
to the Commission or either party disagrees with the recommendation
of the commission, then a dispute shall be deemed to have
been arisen which shall then be submitted to arbitration
for decision in so doing either party shall give three(3)
months prior notice to the other party.
2.
Arbitration shall be conducted by a tribunal composed
of there arbitrators. One arbitrator shall be nominated
by Nepal, one by India, with neither country to nominate
its own national and the third arbitrator shall be appointed
jointly, who, as a member of the tribunal, shall preside
over such tribunal. In the event that the parties are
unable to agree upon the third arbitrator within ninety(90)
days after receipt of a proposal, either party may request
the Secretary-General of the Permanent Court of Arbitration
at the Hague to appoint such arbitrator who shall not
be a national of either country.
3.
The procedures of the arbitration shall be determined
by the arbitration tribunal and the decision of a majority
of the arbitrators shall be the decision of the tribunal.
The proceeding of the tribunal shall be conducted in English
and the decision of such a tribunal shall be in writing
both the parties shall accept the decision as final, definitive
and binding.
4.
Provision for the venue of arbitration, the administrative
support of the arbitration tribunal and the remuneration
the expenses of its arbitrators shall be as agreed in
an exchange of notes between the parties. Both the parties
may also agree by such exchange of notes on alternative
procedures for setting differences arising under this
Treaty.
Article-12
1.
Following the conclusion of this Treaty, the earlier understandings
reached between the parties concerning the utilization
of the waters of the Mahakali River from the Sarada Barrage
and the Tanakpur Barrage, which have been incorporated
herein, shall be deemed to have been replaced by this
Treaty.
2.
This Treaty shall be subject to ratification and shall
enter into force on the date of exchange of instruments
of ratification. It shall remain valid for a period of
seventy-five (75) years from the date of its entry into
force.
3.
This Treaty shall be reviewed by both the parties at ten
(10) years interval or earlier as required by either party
and make amendments thereto, if necessary.
4.
Agreements, as required, shall be entered into by the
parties to give effect to the provisions of this Treaty.
IN
WITNESS WHEREOF the undersigned being duly authorized
thereto by their respective governments have hereto signed
this Treaty and affixed thereto their seals in two originals
each in Hindi, Nepali and English languages, all the texts
being equally authentic. In case of doubt, the English
text shall prevail.
Done
at New Delhi, India on the twelfth day of February of
the year one thousand nine hundred and ninety six.
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Sd........................................
(P.V.
Narasimha Rao)
Prime Minister
Government of India.
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Sd.............................................
(Sher
Bahadur Deuba)
Prime Minister
His Majesty's Government of Nepal.
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